Loading...
HomeMy WebLinkAbout12.0 Well Sharing AgreementEXHIBIT 11 Draft Well -Sharing Agreement WATER USE, OWNERSHIP AND WELL SHARING AGREEMENT THIS AGREEMENT, made and entered into this _ day of 2020, by and between Orchard Creek Ranch, LLC, a Colorado limited liability company (hereinafter, "OCR") and Kirstie Steiner (hereinafter, "Steiner"). W I T N E S S E T H: WHEREAS, OCR owns certain property located in Garfield County, Colorado, whose address is 729 County Road 137, Glenwood Springs, Colorado; and WHEREAS, the property has been divided into two parcels, Parcel A:1 consisting of 23.67 acres and Parcel A:2 consisting of 2.00 acres, as further described in the Steiner Minor Subdivision Plat recorded on 2020 as Reception No. in the office of the Clerk and Recorder of Garfield County, Colorado; and WHEREAS, Parcels A:1 and A:2 will be served by that water well permitted under Well Permit No. and augmented by the West Divide Water Conservancy District Water Allotment Contract No. ; and WHEREAS, the parties desire to set forth in writing the conveyance of rights to and their agreement concerning the ownership of the Well and related improvements, the use and maintenance of the Well, and the rights and obligations of the parties concerning the Well and the use of water therefrom. NOW THEREFORE, for and in consideration of the mutual promises contained herein, the parties agree as follows: 1. Domestic Water Well. Domestic water service for Parcels A:1 and A:2 shall be provided by that water well permitted under Well Permit No. and augmented by West Divide Water Allotment Contract No. . At all times each Owner shall abide by and comply with the terms, conditions and provisions contained within the Well Permit and Water Allotment Contract. Each Parcel shall be deemed to own an undivided one-half (1/2) share of the Well Permit, Well and shared water system facilities (e.g. pump, fittings at the well head, pump house, foot valves and any pipes or pipelines that are jointly used). The individual service line and meter for each Parcel shall be owned exclusively by and be the sole responsibility of that Parcel's Owner. 2. Construction of Domestic Water Well. OCR has previously constructed the Well and shared water system facilities. Other work required on shared components of the water system, including electrical charges, to cause the water at the Well to become and remain available to deliver water to the Owners shall be shared by the Owners in proportion to their share of ownership in the Well. WATER USE, OWNERSHIP AND WELL AGREEMENT Page 2 of 5 3. Operation, Maintenance and Repairs to Domestic Water Well. The Owners shall cooperate with each other at all times to promote the proper function and use of the Well and water system to provide an optimum water supply on demand at all times possible based upon the natural availability of water. The Owners shall not waste water and shall endeavor to use no more than their respective share of the available water. The Owners shall cooperate on the future maintenance, operation, repair, replacement or improvement of the Well, Water System and all common facilities. Each Parcel Owner shall be responsible for 1/2 of the costs associated with the operation, maintenance, replacement and repairs to the Well and the shared water system facilities. In the event the Owners are unable to agree on any required maintenance, repair, replacement or improvement, any Owner shall be entitled to undertake the minimal maintenance, repair, replacement or improvement necessary and essential for proper functioning of the common facilities. In the event an Owner determines to undertake such work unilaterally, such Owner shall notify the other Owners in writing. The Owner undertaking the work shall, upon completion, provide the other Owners with a written statement of work performed and the other Owners' proportionate share of the cost of the same. In the event an Owner fails to pay the proportionate share of any amount due within thirty (30) days after presentment, the Owner which has paid such costs and expense shall be entitled to pursue any remedy available at law or in equity. The Court, in its discretion, may award to the prevailing party Court costs and attorneys' fees incurred. 4. Meter Readings and Contract Payment to West Divide Water Conservancy District. The Owner of Parcel A:1 shall be responsible to submit meter readings and annual payment to the West Divide Water Conservancy District to keep the Water Allotment Contract in good standing. The Owner of Parcel A:1 will provide monthly invoices for electrical usage based on the meter readings from the prior month to the Owner of Parcel A:2. Payment of the invoices for electrical use shall be made within thirty (30) days. Annual payment of the Parcel A:2 proportionate share of the West Divide Water Conservancy District Contracts shall be paid to the Owner of Parcel A:1 at least 30 days in advance of the due date for payment to the West Divide Water Conservancy District. 5. Easement. OCR dedicates to the Owner of Parcel A:2 a permanent, non-exclusive easement for a Waterline Easement, which will be identified as a fifteen foot (15') Waterline Easement to Water Well on the Final Plat. The term hereof shall be perpetual. The ownership of the Waterline Easement granted herein is appurtenant to Parcel A:2 of the Steiner Minor Subdivision and such easement may not be transferred, assigned or conveyed apart or separately from Parcel A:2. 6. Default. If a Parcel Owner fails to discharge its obligations hereunder, any other Owner may give written notice thereof to such defaulting Owner ("Defaulting Owner"). If the Defaulting Owner does not cure such failure within twenty (20) days after its receipt of such notice, then the nondefaulting Owner shall have the right, but not the obligation, to cure such failure. If the nondefaulting Owner elects to cure the Defaulting Owner's failure under this paragraph, then the Defaulting Owner shall, within ten (10) days after written demand by the WATER USE, OWNERSHIP AND WELL AGREEMENT Page 3 of 5 nondefaulting Owner (accompanied by invoices setting forth in reasonable detail the costs incurred by such Owner), reimburse the nondefaulting Owner for the reasonable costs and expenses incurred in connection therewith, together with interest thereon from the date of such demand until paid at the rate of 18% per annum. 7. Indemnity. Each Owner shall indemnify, defend, and hold harmless any other Parcel Owner from and against any and all claims, damages, liens (including without limitation mechanics' and materialman's liens), losses, suits, actions, judgments, liabilities, costs and expenses (including, without limitation, reasonable attorneys' fees and costs and expenses of litigation) arising from or related to the operation, construction, maintenance or use of shared facilities addressed in this Agreement by a Parcel Owner or its permittees except to the extent that such claims, liens, losses, suits, actions judgments, liabilities, costs or expenses result from the negligence, recklessness or willful act of the indemnified Owner or its permittees. 8. Covenants Running With the Land. This Agreement and the provisions contained herein are intended to and shall run with the titles to those real properties described as Parcels A:1 and A:2, Steiner Minor Subdivision, and shall be binding upon and inure to the benefit of the Owners thereof, and their successors and assigns. The laws of the State of Colorado shall govern the validity, effect and construction of this Agreement. This Agreement may not be modified in any manner expect by an instrument in writing signed by the Owners of each of the Parcels. 9. Notice. Any notice or demand under this Agreement shall be in writing and shall be deemed given, received, and served (a) upon personal delivery, or (b) on the third business day after mailing, postage prepaid, be registered or certified mail, return receipt requested addressed to such Parcel Owner's address as may appear in the Garfield County Assessor's records. 10. Entire Agreement. This Agreement contains the entire agreement of the parties concerning the subject matter herein and supersedes all prior agreements, if any. 11. Governing Law. For purposes of this Agreement, the Parties agree that it they shall submit to the jurisdiction of the Garfield County Courts. (Colorado) 12. Attorney Fees. In the event that either party is reasonable required to utilize the services of any attorney to initiate litigation and enforce any provision hereof, then the party `prevailing in such litigation, whether the party initiating litigation or otherwise. shall be entitled to its reasonable attorney fees, court costs and all costs of such litigation, including, without limitation, costs of discovery. WATER USE, OWNERSHIP AND WELL AGREEMENT Page 4 of 5 IN WITNESS WHEREOF, this Agreement is executed this day of , 2020. Orchard Creek Ranch, LLC A Colorado limited liability company By: Kristie Steiner, as Manager State of Colorado County of Garfield Subscribed, sworn to and acknowledged before me by Kirstie Steiner, as Manager of Orchard Creek Ranch, LLC on this day of , 2020. Witness my hand and seal. My commission expires: State of Colorado County of Garfield Notary Public KIRSTIE STEINER By: Kristie Steiner Subscribed, sworn to and acknowledged before me by Kirstie Steiner, on this day of , 2020. Witness my hand and seal. My commission expires: WATER USE, OWNERSHIP AND WELL AGREEMENT Page 5 of 5 Notary Public